Brief argues against liability expansion in asbestos suits

John O'Brien Mar. 9, 2010, 2:40pm

SAN FRANCISCO (Legal Newsline) - A group of business organizations and insurance companies is urging the California Supreme Court to reject a legal theory that they say holds manufacturers liable for products made by others in asbestos cases.

An amicus brief filed by the American Tort Reform Foundation and the U.S. Chamber of Commerce, among others, says asbestos litigation is "longest-running mass tort" in U.S. history because of the development of new legal theories like the one in Barbara O'Neil's case against Crane Co. and Warren Pumps.

The lawsuit involves Patrick O'Neil, who was responsible for repairs and maintenance of equipment in the boiler rooms, engine rooms and machine room on an aircraft carrier and died in 2005.

Crane made valves and Warren made pumps used on the ship. Both were covered with an asbestos insulation and contained asbestos packing on the inside. When the packing and insulation were replaced, it created asbestos dust.

The state Supreme Court is to decide the question: "Can the manufacturer of valves and fittings installed on Navy ships, and designed to be used with asbestos packing, gaskets, and insulation, rely on the 'component parts' defense or related theories to preclude strict liability for asbestosis injuries years later suffered by seamen on those ships?"

Those who signed the amicus brief say no.

"Plaintiffs' third-party liability concept is so extreme that almost no plaintiff raised it until recently," the brief says.

"Indeed, the lack of older case law on point, after decades of litigation and many hundreds of thousands of filings, by itself, speaks volumes about the exotic nature and recent vintage of Plaintiffs' theory."

The brief says plaintiffs lawyers brought the theory to California from Washington, where two appellate decisions in their favor were rejected by the state Supreme Court.

A decision by the state's Second District Court of Appeals sided with the plaintiffs, saying the defendants should have known their products would be insulated with asbestos to protect them from heat.

"(R)espondents would clearly be liable to a sailor who was injured as a result of exposure to the asbestos-containing packing and insulation they supplied with their pumps and valves. Respondents do not contend otherwise," the decision says.

"Instead, they seek a different result because O'Neil was injured not by the original packing and insulation, but by replacement parts.

"We see nothing in these cases which would cut off respondents' responsibility for failure to warn or design defect, at the point in time at which their products were subject to predictable and ordinary maintenance or repair."

The amicus brief says plaintiffs attorneys are only seeking to expand liability in asbestos cases because so many companies that made asbestos-containing products are bankrupt.

Briefing in a related case before the state Supreme Court has been deferred pending the decision in O'Neil.

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